In this Section:
- Strategies For The Physician Approaching The Six-Year Limit
- Clinical Waiver Programs
- Research Waiver
There are a number of important strategies for physicians who are approaching the six-year limit of their H-1 eligibility.
The Immigration Act provides that those who have a labor certification pending for more than one year when their sixth year of eligibility completes, one-year status extensions of the H-1B visa are available on an annual basis until there is a final solution of the immigration based upon their respective labor certification. The labor certification may be petitioned for by an employer different from the one petitioning the H-1. The labor certification petitioner may include either a present employer or a future prospective employer who might like to employ the individual in the future when the beneficiary’s permanent residence is granted.
The second important strategy for dealing with physicians who approach the sixth-year eligibility is to obtain another non-immigrant status such as TN, O-1, or E-1.
The third strategy is for the beneficiary to adjust status to legal permanent resident based upon simultaneous filing of an extraordinary ability EB-1/NIW or NIW/HPSA.
Finally, certain circumstances of the six-year eligibility may be reclaimed if, for example, the beneficiary enters the U.S. for the first time after the original petition is approved or during the six years has spent time outside of the U.S. which has been “meaningful interruption” of status.
Clinical Waiver Programs
Conrad State 30 Program:
The Conrad State 30 program is a very important waiver option for the non-primary care physician since, unlike the HHS, the ARC, and the DRC individual states may, if they chose, make recommendations for any type of physician including specialty and sub-sepcialty. Increasingly, many are choosing to do so. This trend will hopefully continue, since theoretically most primary care labor cases could be submitted to HHS with state support. Again, basic requirements apply. The position must be for 40 hours per week in a federally designated underserved area. The number of waivers, however, are statutorily limited to 30 per year per state. The state programs vary widely as per level of recruitment required, type of petitions supported and type of application required.
Health and Human Services: (HHS)
For many years the Department of Health and Human Services has made recommendations for physicians engaged in research. In an exciting development, in December 2002, rules were published allowing for the Department of Health and Human Services to recommend waivers for clinicians based on service in federally designated underserved areas. The program is limited to primary care physicians. Not only must the physician intend to work as a primary care doctor, but he or she must submit the waiver application within 12 months of the completion of a primary care residency program (exception is made for 2003, allowing submission to October 2003).
The basic requirements for submission are that the physician be working as a primary care physician (family practice, general internal medicine, Ob/Gyn, general pediatrics or general psychiatry) engaged in outpatient services for a period of three years on an H-1B visa for at least 40 hours per week. The facility must treat all patients regardless of their ability to pay, must accept Medicare S-CHIP assignment, and use of a sliding scale. The contract may not include a non-compete clause. The application requires a support letter from the State Health Department. As noted, the physician must have completed his or her residency program within one year of submission of the application. The employer must document recruitment of U.S. workers.
The VA is the only federal program that, like the Conrad State 30 program, permits waivers for non-primary care physicians. Like most other programs, recruitment is required. The waiver may be granted upon appointment with only 5/8 service at the VA hospital and 3/8 at the affiliated university. However, physicians should be concerned in such a scenario that they satisfy the obligation of section 214(l) for a period of three years in H-1B status. The VA is precluded from recommending waivers for those who will engage in time limited employment such as residency and fellowship positions.
HHS Research Waiver
The HHS research waiver is for physicians or scientists subject to the foreign residency requirement who are indispensable to ongoing research projects that are in the national interest. The factors that are relevant to success of HHS waiver applications are the following:
Indispensability of the alien to the research project. The alien should be a principal scientist critical to the development of the project.
Qualifications of the alien as a researcher.
National importance of the research itself; i.e., volume of people affected by the research, the uniqueness of the research as well as its chances for successful results.
The facility’s long-term commitment to the alien.
The alien’s commitment to the research, because at a minimum, 50% of the alien’s time must be allotted to the research.
The quality and amount of recruitment efforts undertaken by the facility to find qualified candidates for the position.
Unlike the VA, state or other IGA waiver candidate, the HHS researcher does not have to work in the position on an H-1B for three years. Instead, the researcher may move directly to legal permanent residency by obtaining approval of an immigrant petition.